View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by Duke Law Scholarship Repository Are We Insane? The Quest for Proportionality in the Discovery Rules of the Federal Rules of Civil Procedure Paul W. Grimm Albert Einstein defined insanity as “doing the same thing over and over again, and expecting different results.”1 For over thirty years, the federal rules of civil procedure have been serially amended to require federal trial judges to control pretrial discovery in civil cases to ensure that it is “proportional”—meaning that the costs to the parties are not unduly great given what is at stake in the litigation. And, for thirty years, lawyers, bar associations, clients and commentators have complained loudly that the federal judges have not done so. The Supreme Court has approved yet another series of civil rules changes, which took effect on December 1, 2015, that once more direct judges to ensure that discovery is proportional. But if the proportionality requirement already has been in the rules for over thirty years without inducing judges to fulfill their obligation to manage discovery, what makes this latest amendment requiring the exact same thing any more likely to achieve success? In short, why has achieving proportionality been such an elusive goal? Is it possible for judges to manage discovery so that it is proportional? If so, how are they to do so? And, if achieving proportionality is possible, why have judges failed to do so? Is it because they are resistant to doing what the rules require? Or are they willing to try, but they lack the knowledge or training to succeed in the task? These questions, and their answers, are the focus of this thesis. Based on an analysis of nearly two hundred cases in which federal judges had to resolve discovery disputes, decided between 1983 (when the proportionality requirement first was adopted) and 2014, I conclude that 1 www.brainyquote.com/quotes/quotes/a/alberteins133991.html judges can use a surprisingly large and flexible array of tools—alone or in combination—to achieve proportional discovery. Further, I conclude that frequently recurring “warning signs” signal when a case is likely to involve discovery issues that threaten to make proportionality difficult to achieve, and these can alert judges to the need to take action before the discovery costs spiral out of control or excessive delay in completing discovery occurs. Finally, based on a survey of forty-two district judges and sixty-eight magistrate judges, I conclude that the most likely reasons for the lack of success in achieving proportional discovery to date is a reluctance on the part of judges to view themselves as “case managers” as opposed to “dispute resolvers,” and a lack of sufficient training or education for judges to see the benefits and methods of managing discovery to achieve proportionality. In essence, new federal judges traditionally must “figure out for themselves” how to deal with discovery disputes in their cases. For those who come to the bench with substantial prior experience as civil litigators, this may not be too much to expect of them. But for those who come to the bench after a career as a prosecutor, defense counsel, or non-litigator, the task of managing discovery in hundreds of civil cases, while simultaneously handling an equivalent number of criminal cases, can be daunting. My ultimate conclusion is that if the most recent changes to the civil rules are to have their intended result, a judicial education program must accompany their enactment. The program would teach judges the tools and techniques available to monitor and manage discovery in civil cases before problems develop (rather than waiting until a discovery dispute has occurred to become involved), and it would counteract the resistance of many judges to accept the obligation to do so. I start with a discussion of the criticisms expressed about the current state of things, as reflected in a series of surveys conducted in 2009 by several prominent bar organizations, 2 followed by a discussion of the civil procedure rules themselves, and the efforts over the last thirty years to require judges to monitor and manage discovery to achieve proportionality. While the obligation to do so is clear, the rules are nearly silent about how the judges are expected to accomplish this vital task, and the bar surveys—though almost uniformly critical of the judges’ failures to do so—similarly offer no helpful insight as to the techniques or procedures they should use to succeed. Then, based upon an analysis of nearly two hundred cases decided in the last thirty years where the parties asked judges to resolve discrete discovery disputes in pending federal cases, I identify a “toolkit” of techniques that a judge can employ—alone, or in combination—to achieve proportionality. Using examples from the cases, I discuss these techniques, which include such measures as actively monitoring all cases and becoming more actively involved in managing them when needed, encouraging counsel and the parties to cooperate during discovery, adopting informal discovery dispute resolution methods, shifting the costs of discovery from the producing party to the requesting party, phasing discovery, using computer technology and sampling techniques to reduce the cost of reviewing voluminous electronic files, limiting the amount of time parties must spend responding to discovery requests, imposing sanctions for improper behavior, and capping the amount of discovery allowed based on an estimate of the likely range of recovery in a case. I also identify seven “red flags” that provide early warning signs to a judge of the need to intervene in a case to make sure that costs do not spiral out of control. These warning signs include cases involving complex litigation or multiple parties, cases where there is unusually great party or attorney animosity, cases involving discovery of electronically stored information, cases where there are issues regarding spoliation of evidence, pro se litigation, and asymmetrical 3 litigation. In discussing these warning signs, I give examples of how a judge may intervene using the “proportionality toolkit” to keep costs in check. Finally, based on a survey of United States district and magistrate judges, I offer an explanation why achieving proportionality may have been so difficult, and offer suggestions regarding how to educate judges better about how to use the proportionality tools identified in the case analysis to be more successful at achieving proportionality. My ultimate conclusion is that, by using the techniques I identify, combined with an aggressive education program for judges regarding how to use the “proportionality toolkit” and recognize the warning signs, it will indeed be possible to stop the insanity. Preliminarily, some perspective will help focus the analysis. In May, 2010, prominent federal and state judges, academics, and attorneys representing all segments of the litigation bar, as well as representatives of bar organizations, government and corporations, attended a conference that the Judicial Conference Advisory Committee on the Civil Rules (“the Advisory Committee”) convened at the Duke University School of Law. The purpose was to take a critical look at the current state of civil litigation in the United States and to identify specific strategies for improvement to enable it to better fulfill the goal of securing “the just, speedy, and inexpensive determination of every [civil] action and proceeding.”2 Among the goals of the conference was to evaluate discovery in civil cases in federal court, and particularly to focus on problems associated with discovery of electronically stored information (“ESI”).3 In advance of the Duke Conference, a number of prominent organizations representing a wide variety of 2 Fed. R. Civ. P. 1. 3 Emery G. Lee III & Thomas E. Willging, Preliminary Report to the Judicial Conference Advisory Committee on Civil Rules, October, 2009 at 5, available at http://www.fjc.gov/public/pdf.nsf/lookup/dissurv1.pdf/$file/dissurv1.pdf; Richard Marcus, How to Steer an Ocean Liner, 18 Lewis & Clark L. Rev. 615, 624 (2014). 4 participants in the civil litigation process conducted surveys of their members to obtain their views regarding the effectiveness of the federal civil discovery rules. Among those groups were the ABA Section of Litigation, the American College of Trial Lawyers (in conjunction with the Institute for the Advancement of the American Legal System), the Federal Judicial Center, the Association of Corporate Counsel, and the National Employment Lawyers Association (“NELA”). While there were areas of disagreement among the various surveys about the state of health of the federal civil litigation process, there was wide agreement in 2009 that the process takes too long, is too expensive, and that in too many cases the cost of discovery is disproportionately expensive in relation to the value of the case or the importance of the issues at stake in the litigation.4 Those familiar with the federal rules of civil procedure could view this nearly universal agreement only as an indictment of the effectiveness of more than thirty years of rulemaking efforts to ensure that discovery costs were proportionate. This is because the civil rules first 4 ABA Section of Litigation Member Survey on Civil Practice: Full Report, 2 (2009) (reporting that 89% of survey respondents believed that litigation costs are not proportional to the value in a small case, and